The Conservative Sensibility Read online

  First, it is simpleminded to think that there is majority support for, or majority interest in, or even majority awareness of, even a tiny fraction of what governments do in “dishing out” advantages to economic factions. Does anyone really think that when the Nashville city government dispenses favors for the taxi and limo cartel, it is acting on the will of a majority of the city’s residents? Can anyone actually believe that a majority of Louisianans or Oklahomans give a hoot about who arranges flowers or sells caskets?

  The second and more fundamental fallacy behind a passive judiciary deferring to majoritarian institutions is this: We know, because he said so, clearly and often, that Lincoln took his political bearings from the Declaration of Independence. We know that Lincoln believed, because the Declaration says so, that governments are instituted to secure our natural rights, which pre-exist government and include the unenumerated ones affirmed in the Constitution’s Ninth Amendment. Yet for many years and for several reasons, too many conservatives have unreflectively and imprudently celebrated “judicial restraint.” The reasons for this include an understandable disapproval of some of the more freewheeling constitutional improvisations of the Warren court. There also is the conservatives’ understandable belief that most judges are not conservative: The law schools that train future judges, and the law reviews that influence current judges, are, on balance, not balanced: They give short shrift to conservatism. It is, however, time for conservatives to rethink what they should believe about the role of courts in the American regime. Many conservatives favor judicial deference and restraint because they succumb to the populist temptation. Conservatives are hardly immune to the temptation to pander, to preach that majorities are presumptively virtuous, and that the things legislatures do are necessarily right because they reflect the will of “the people.”

  The progressive project, now entering its second century, has been to give majority rule priority over liberty when the two conflict, as they inevitably and frequently do. This reflects the progressive belief that rights are the result of government; they are “spaces of privacy” that government “has chosen to carve out and protect.” The progressives’ principle of judicial restraint, distilled to its majoritarian essence, is that an act of the government should be presumed constitutional and that the party disputing the act’s constitutionality bears the heavy burden of demonstrating the act’s unconstitutionality beyond a reasonable doubt. The contrary principle of judicial engagement is that the judiciary’s principal duty is the defense of liberty, and that the government, when challenged, bears the burden of demonstrating that its action is in conformity with the Constitution’s architecture, the purpose of which is to protect liberty.

  Arguments about the judicial supervision of democracy at all levels of American governance are as old as the Republic. Lemuel Shaw, who served for three decades (1830–1860) as chief justice of the Massachusetts Supreme Judicial Court, provided the controlling definition of states’ police power. It is “the power vested in the legislature by the constitution, to make…all manner of wholesome and reasonable laws…as they shall judge to be for the good and welfare of the commonwealth.”108 But who, if anyone, was to have the right to contest the supposed wholesomeness and reasonableness of laws? After the Civil War and the application of the Bill of Rights to the states, courts would have the duty to provide opportunities for plucky people eager to contest state laws that unreasonably advance unwholesome interests. In a June 1928 letter, Justice Louis Brandeis foreshadowed the court’s path, a decade later, to footnote 4. The letter was to his friend Felix Frankfurter, who was then a professor at Harvard Law School and who would join the court in 1939, the year Brandeis retired. Brandeis wrote: “In favor of property, the Constitution is liberally construed—in favor of liberty, strictly.”109 By “liberally” Brandeis meant permissively regarding government’s desires to regulate. By “strictly” he meant wary about government power. He was reading the Constitution to say that it was less “in favor of” property than it is of liberty.

  There is, however, nothing in the document’s text that mentions or even intimates such a distinction, let alone recommends or mandates it. Furthermore, there is an overwhelming abundance of evidence from the thinking of the nation’s Founders and the Constitution’s Framers that they would have found this distinction not just objectionable but unintelligible. They thought that individuals have property in—ownership of—themselves which is necessary for the pursuit of happiness. And they understood that ownership of property provides the individual with a zone of sovereignty in which the individual is at liberty to use his resources for the pursuit of happiness. Conservatism has no more urgent task than that of convincing the country that judicial deference often is dereliction of duty, and that an energetically engaged judiciary is necessary lest, in Justice Robert Jackson’s words, “the lights go out.”110

  Chapter 5

  POLITICAL ECONOMY

  Rescuing the Great Enrichment

  from the Fatal Conceit

  The curious task of economics is to demonstrate to men how little they really know about what they imagine they can design.

  Friedrich Hayek1

  Kaskaskia, a town on the Mississippi River, was the first capital of Illinois territory until 1818, when Illinois became a state. The capital was then moved about eighty miles northeast to Vandalia, partly because this town was in one of the most sparsely settled parts of the state. The purpose of the move was to encourage people to move there. The act of making Vandalia the capital was what then was called an “internal improvement”—a government investment to promote social mobility and economic growth. Such measures were much on the mind of the twenty-five-year-old state legislator who came to Vandalia from his home in Springfield in November 1834.

  Abraham Lincoln, his best friend Joshua Speed later recalled, said that his highest ambition at that time “was to become the DeWitt Clinton of Illinois.”2 Clinton, the sixth governor of New York, was the driving force behind the first great American infrastructure project, perhaps the most consequential until the Interstate Highway System—the Erie Canal. Clinton saw this project as a means of preventing states in the West from detaching themselves from the Union. The canal would “bind the union together by indissoluble ties” because the people would be “habituated to frequent intercourse and beneficial inter-communication,” and all Americans would be “bound together by the golden ties of commerce and the adamantine chains of interest.”3 The canal also, and inadvertently, helped to bring down the old order in Europe. By bringing cheap wheat from America’s Great Plains, the canal struck at the roots of Europe’s landed aristocracy. Daniel Patrick Moynihan, a New York chauvinist, delighted in saying that the canal did more than Europe’s socialist movements did to upend Europe’s class structure. Such are the unanticipated caroms of economic forces when they are allowed the freedom to flow.

  Two weeks after arriving in Vandalia, Lincoln proposed that the state build a toll bridge across a creek in Sangamon County. Next, he proposed a road from the Indiana border to Peoria and then to the Mississippi River on the border with Missouri. In his first term he proposed seven other road bills, to be paid for by a 20 percent premium to the states from the sale of federal lands. His most grandiose idea was for a canal connecting Lake Michigan with the Mississippi, via the Illinois River. When money from the sale of 236,000 acres of public land was quickly exhausted, Lincoln doubled down, proposing that Illinois establish a state bank to finance such projects. So it is not surprising that, long before disunion became an existential threat to the republic, Henry Clay’s proposed “American System” of internal improvements for unifying the nation’s sections appealed to Lincoln. Clay created the Whig Party, with which Lincoln identified when running for re-election to the state legislature in 1836.

  Clay came as a young man to a Washington where rain often made Pennsylvania Avenue impassable. It was a Washington where President Thomas Jefferson reluctantly agreed to sign the bill authoriz
ing federal construction of roads, but admonished Congress that the Constitution should be amended to authorize such activities, lest the doctrine of “implied powers” become a large loophole and the Constitution itself become mostly a loophole. Clay quickly became what the country became and still is: Rhetorically he was a Jeffersonian; actually he was a Hamiltonian, asserting for the federal government implied powers sufficient for his “American System.” That system involved enactment of tariffs, building or subsidizing roads, canals and railroads, and other elements of the infrastructure of a unified commercial nation with an energetic central government that would be, in Hamilton’s words, “adequate to the exigencies of the Union.”4

  Establishing sound public finance was the first challenge of the new nation, which is why the Treasury Department had forty employees when the State Department had only five. The sale of government bonds to banks was crucial to expanding the money supply, which ignited commerce, which, in time, united the regions. America’s march to true nationhood was halting, in part because of economic rivalries among the nation’s regions. Even Chief Justice John Marshall, the supreme nationalizer, used “nation” gingerly: “America has chosen to be, in many respects, and to many purposes, a nation.”5 Early in the nineteenth century, during debates on the building of the National Road, Senator William Smith of—where else?—South Carolina objected to this “insidious word” which was, he said, inimical to “the origins and theory of our government” as a confederation of sovereign states.6 It took roads—and canals, railroads, the postal service, and, especially and finally, the New Deal’s redistribution of wealth toward the South—to provide the economic prerequisite of national unity.

  Defending the “national idea” in 1830, Daniel Webster cited the Delaware breakwater, an artificial harbor the federal government was building near the mouth of Delaware Bay. He argued that none of the neighboring states would have built it because it was not for the sole benefit of any one of them, so only the federal government could do it. Historian James McPherson writes that prior to 1815 most roads were rutted paths impassable in wet weather. Commerce depended on sailing ships and riverboats, and the cost of moving goods thirty miles inland equaled the cost of moving them across the Atlantic. Transatlantic trade exceeded inland commerce, and economic growth barely exceeded population growth. Then, however, came all-weather macadamized roads, and the Erie Canal ignited emulative construction: By 1850 there were 3,700 miles of canals. Next, railroads freed commerce from frozen canals in winter, cut travel time from New York to Chicago from three weeks to two days, and cut the price of shipping a ton of wheat from Buffalo to New York from one hundred dollars to ten dollars. The difference between the wholesale price of pork in Cincinnati and New York plummeted from $9.53 to $1.18. Suddenly urban workers had more disposable income to spend on manufactured goods.7

  A poetic episode in our national history occurred July 4, 1826. On that fiftieth anniversary of the Declaration of Independence, the author of that founding document, Thomas Jefferson, died, as did John Adams, who had done as much as anyone to produce the occasion for Jefferson’s document. Three days later, in Quincy, Massachusetts, after attending Adams’ funeral, some dignitaries were taken to see a prosaic force that would shape what the two Founders had helped to found. They saw a railroad, one of the nation’s first, and not much of one. It was built to carry granite a few miles from Quincy to Boston for the Bunker Hill Monument. As a harbinger, however, it was huge. Railroads soon would have constitutional consequences, and not just because, in the coming war against Southern insurrection, they would help the army of the central government settle a constitutional argument about the primacy of that government. Railroads also had constitutional consequences because they influenced Americans’ thinking about the nature of their regime. Railroads, and the industrialism of which they were emblematic, filled our “extensive Republic” with energy. Our big country acquired a big economy, and a bigger government than it was used to.

  But is government as big as today’s government required or prudent? Today, conservatism is asking whether a big government is merely a contingent, or a necessary, outcome in a big country with a big economy. That this country was to be big was never in doubt. In the Revolutionary era, Americans, most of whom lived on the continent’s Atlantic fringe, audaciously called their legislature the Continental Congress. They knew where they were headed—to California. They would get there by many means, including railroads. To promote construction of these steel sinews of national strength, the central government lent its considerable weight. By 1908, eight decades after the deaths of Adams and Jefferson, a professor of political science marveled at what industrialism had wrought: “The copper threads of the telegraph run unbroken to every nook and corner of the great continent, like the nerves of a single body.… Railways lie in every valley and stretch across every plain.… Industrial organization knows nothing of state lines, and commerce sweeps from state to state.” So wrote Princeton’s Professor Woodrow Wilson, five years before becoming president of the United States.8

  As early as the 1850s, the roar of steam-powered steel wheels clattering over steel rails had been the sound of American society, whose economy was preparing to settle what politics and legislatures could not settle. The supposedly prosaic matter of “internal improvements” was crucial to the improvement of the nation’s inner, meaning moral, life, and to the showdown over slavery. Railroads carrying conscripts, who were carrying weapons mass-produced from interchangeable parts, would be the North’s decisive riposte to the South’s constitutional arguments in favor of a right to secede. Railroads, and the steel mills and coal mines and immigrant labor behind them, closed this question that had been resistant to compromises.

  John Steele Gordon, a historian of America’s enterprise culture, has noted that seven of America’s ten largest fortunes in 2014 were made possible by the microprocessor that Intel first marketed in 1971. In the intervening years, even the Walton family fortune, estimated at $130 billion in 2018, depended on Walmart’s worldwide system of precise inventory controls and logistics that would be impossible without the microprocessor. There is, however, nothing new about vast fortunes resulting from the socially beneficial, and largely egalitarian, effects of new technologies. Gordon notes that before James Watt’s rotary steam engine, which was patented in 1781, “only human and animal muscles, water mills and windmills could supply power.” After Watt, low-cost energy that had been stored in coal but had been essentially useless for commerce suddenly revolutionized manufacturing (the factory system) and transportation (railroads). The Vanderbilt, Harriman and other vast fortunes were made in railroading, which made a national market. This made possible economies of scale that greatly benefited the masses.9

  Simon Winchester has described the remarkable extent to which the United States, with its “convoluted” pedigree, has become united through two and a half centuries of material achievements deliberately created to foster unity. Once the homogeneous nature of America’s early Puritan settlements had been diluted, America “became too much of a mongrel nation” to enjoy simple organic unity. Because America lacked “the communal simplicities” of nations such as Japan or Norway, “man has had to do the hard work in bringing America together.” Winchester, British by birth and American by choice, brings an immigrant’s sensibility to the task of answering this question: “What factors have ensured that, say, a Chinese migrant in rain-swept Seattle can find himself locked in some near-mystical concord with a Sephardic Jewish woman in Manhattan or a Cherokee student in Minnesota or a Latina stallholder in a market in Albuquerque—all of them being able to enjoy the same rights and aspirations, encapsulated in their shared ability to declare so simply, I am an American?” Winchester’s answer is this: In addition to “the adhesive nature of the ideas on which the nation was founded,” unity has been a product of “the physiology and the physics of the country, the strands of connective tissue that have allowed it to achieve all it has.” These inclu
de the innumerable visible, tangible connections of roads, canals, railways, telephone lines, power grids and now, Winchester notes, “by submerged rivers of electrons.”10

  It is altogether fitting that Lincoln, the man most responsible for using the adhesive idea of equality to preserve the union, was also, and first, a railroad lawyer who was an early and ardent advocate of a transcontinental railroad. Five years after the war that saved the Union, the railroad industry was the nation’s second-largest employer, a breathtakingly rapid emergence. As Winchester writes: “When Tennessee’s Andrew Jackson was elected president in 1828, he traveled to the White House in a horse-drawn carriage; when he stepped down from his second term, just eight years later, he left for home aboard a steam train. Less than twenty miles of track had existed in the country when he took office; there were nearly three thousand when he left.” A poet rhapsodized that “gliding cars, like shooting meteors run/The mighty shuttle binds States in one.” And almost half the financing of early railroads was by government, truly a program of nation-building. While Winchester is hardly an uncritical celebrant of big government, he correctly insists: “Without an engaged and functioning federal government, the development of these various strands of the country’s connective tissue would probably have been either delayed or never achieved at all.”11